RONALD J. KERN AND JOY C. KERN, HIS WIFE, AND JOLLY DAY CARE CENTER AND NURSERY SCHOOL, INC.v.ZONING HEARING BOARD OF THE TOWNSHIP OF TREDYFFRIN AND THE BOARD OF SUPERVISORS OF THE TOWNSHIP OF TREDYFFRIN. THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP, APPELLANT

Appeal from the Order of the Court of Common Pleas of Chester County in case of Ronald J. Kern and Joy C. Kern, his wife, and Jolly Day Care Center and Nursery School, Inc. v. Zoning Hearing Board of the Township of Tredyffrin and the Board of Supervisors of the Township of Tredyffrin, No. 292 October Term, 1980.

COUNSEL

William H. Lamb, Lamb, Windle & McErlane, P.C., for appellant.

Harry F. Dunn, Jr., Dunn and Miller, for appellees.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 68 Pa. Commw. Page 397]

The Board of Supervisors of Tredyffrin Township (township) appeals an order of the Court of Common Pleas of Chester County reversing the decision of the township zoning hearing board (board) which denied Ronald and Joy Kern's application for a special exception.

The Kerns are equitable owners of a lot and large house located at the intersection of Old Eagle School and Crestline roads in Tredyffrin Township. Under the township's zoning ordinance, the property is in the R-1 residential district. The Kerns applied for a special exception to use the property for a nursery

[ 68 Pa. Commw. Page 398]

school and day care center,*fn1 uses permitted by special exception in the R-1 district.*fn2

Old Eagle School Road (Old Eagle School) is a heavily trafficked state highway which runs north and south. Crestline Road (Crestline) is, for the most

[ 68 Pa. Commw. Page 399]

part, a lightly traveled local residential road, which terminates at its intersection with Old Eagle School.*fn3 Parking facilities for Amtrak's Strafford passenger station are located on the south corner of the intersection, directly across Crestline from the Kerns' proposed school site. Crestline provides access to the Amtrak parking.

At the board's hearing, the Kerns testified that the proposed school would have approximately seventy-five students*fn4 and fifteen staff members and would be open from 7:30 a.m. to 6:00 p.m. The Kerns presented the testimony of a traffic expert, who opined that the existing road system could accommodate the traffic which would be generated by the proposed use without causing safety hazards.

The township and several nearby surrounding residents opposed the Kerns' application. The township's traffic expert testified that he observed occasional backups on Crestline, at the Old Eagle School intersection, during peak traffic volume hours;*fn5 that the proposed school would substantially increase peak hour traffic on Crestline and the number of left turns across traffic;*fn6 that sight distance*fn7 for traffic exiting

[ 68 Pa. Commw. Page 400]

onto Crestline from the property's existing driveway*fn8 "could create an unsafe situation," particularly when traffic was backed up on Crestline from the intersection at Old Eagle School; that Old Eagle School was congested during peak traffic hours; and that left turns onto Crestline from Old Eagle School "could possibly create some safety problems and safety hazards."

Both experts agreed that approximately sixty vehicles would enter and leave the proposed school in the morning between 7:30 and 9:30 a.m., and again in the afternoon, between 4:00 and 6:00 p.m.*fn9 The experts also agreed that the morning and afternoon traffic hours for the Crestline and Old Eagle School intersection occur within these periods.*fn10

The board found that the traffic which would be generated by the proposed school was "likely to . . . result in undue traffic congestion." Based on this

[ 68 Pa. Commw. Page 401]

finding, the board denied the Kerns' application because it concluded that "projected traffic . . . would create a hazardous traffic condition."

Because the common pleas court took no additional evidence, our scope of review is limited to determining whether the board made an error of law or abused its discretion and whether the board's decision is supported by substantial evidence. West Whiteland Township v. Sun Oil Co., 12 Pa. Commonwealth Ct. 159, 316 A.2d 92 (1974).

An applicant, by showing that the proposed use is permitted by special exception and that it complies with the specific requirements of the ordinance, identifies the proposal as one which the municipal legislative body has determined to be appropriate in the district and therefore presumptively consistent with the health, safety and general welfare of the community. Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 470-71, 290 A.2d 715, 718 (1972).

The standards in the ordinance's Sections 1807 and 2110 A are general, non-objective, standards. The persuasion burden and the duty of going forward with the evidence, as to such general standards, is on the objectors unless the ordinance expressly shifts to the applicant the persuasion burden concerning general detrimental affect upon community health, safety and welfare. Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980). Section 2110 concludes by stating:

D. In the case of the request for a special exception . . . it shall be the responsibility of the applicant to present such evidence as is necessary to demonstrate that the proposed use or modification complies with the pertinent criteria or standards set forth in this Section.

This provision does not expressly refer to any "burden" concept or otherwise deal with any relative

[ 68 Pa. Commw. Page 402]

measure of proof; it therefore does not attempt to shift the persuasion burden. Although its terms ("responsibility . . . to present . . . evidence") may be read as placing the evidence presentation duty upon the applicant -- and it can certainly do so as to specific standards, Bray -- our decisions have held that the evidence presentation duty, as applied to general detriment standards, cannot be shifted to the applicant and must remain upon the objectors, Bray; Derr Flooring Co. v. Whitemarsh Township Zoning Board, 4 Pa. Commonwealth Ct. 341, 347-48, 285 A.2d 538, 542 (1972).

Here, the objectors met their evidence presentation burden with respect to potential traffic hazards. To meet their persuasion burden, the objectors must have proved that there is a high probability that the school will generate traffic patterns not normally generated by that type of use and that this abnormal traffic will pose a substantial threat to the health and safety of the community. Konyk; Bray; West Whiteland; Lower Providence Township and Wood v. Ford, 3 Pa. Commonwealth Ct. 382, 283 A.2d 731 (1971).

The board did not find that the school's impact upon traffic safety would be greater than would normally be expected from that type of use or that there was a high probability that the school would cause a substantial traffic hazard. The fact that a proposed use would contribute to projected traffic congestion primarily generated by other sources is not a sufficient basis for denying the special exception. West Whiteland. Therefore, the board erred by denying the special exception.

Accordingly, we affirm.

Order

Now, August 24, 1982, the order of the Court of Common Pleas of Chester County, No. 292, October

[ 68 Pa. Commw. Page 403]

Term, 1980, dated June 3, 1981, is hereby affirmed subject to modification. We order that the special exception application be granted, subject to other zoning ordinance provisions duly applicable, and subject to such reasonable conditions, as to traffic circulation or otherwise, as the zoning hearing board may impose.

Disposition

Affirmed as modified.

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